The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes. I flagged this case some months ago and have been eagerly awaiting its result. In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.

Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education. While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007’s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.” Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.

Garza’s concurrence in Fisher begins:

Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.

Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs. Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:

After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. […]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.

In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench. Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved. Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures. As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered. Just as Citizens United reversed McConnell v. FEC andGonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.

I’ve said it before and I’ll say it again: next term is going to be a doozy.

Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit. I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska. Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:

Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court. When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003’s Grutter v. Bollinger, Kennedy dissented.

Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977’s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated. As he concluded in his Grutter dissent:

If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.

If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action. Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race. After all, Kennedy, in giving the conservative bloc its fifth vote in 2007’s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This maximalist statement was certainly not only meant for public high school admissions schemes.

Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it. In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.

The justice to watch, then, will be the Chief. In Parents Involved, he showed his hand. He wrote more aggressively than he had written in Wisconsin Right to Life, in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United. By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.

Yet might he want to cast his lot with Kennedy in Fisher? Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise. Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.

But I don’t think this will happen. I take the Chief’s position in Parents Involved at face value. He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education. In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that

if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.

Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent. Ultimately, that resulted in the Court’s overturning not only 2003’s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990’s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.

Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke. This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.

[T]he answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)

The screenwriter that posed the secession question to Scalia may have found better luck if he inquired about something a little closer and ostensibly less soaked in blood. Something like, say, the constitutionality of affirmative action.

There is no guarantee that this suit will move forward. But BAMN appears emboldened by two factors: 1) the current Prop 8 challenge in a California federal district court, and 2) the Roberts Court’s hostility to race-based policies and initiatives.

Yet just because a federal court proceeded with trial in the Prop 8 case, and that case seems destined to go to a Supreme Court that has issued rulings favorable to gay rights, does not mean that Prop 209 will get the same treatment. First, the Ninth Circuit unanimously smacked down a challenge to the amendment in 1997. Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against affirmative action: he dissented Metro Broadcasting, was in the majority in Adarand, dissented in Grutter, was in the Gratz majority, was Parents Involved‘s fifth vote, and penned Ricci.

Justice O’Connor in Grutter upheld affirmative action. Justice Alito will have no such sympathies. Unless Kennedy has a Casey moment and steps back from the brink of overturning another liberal, Burger Court era precedent, BAMN should count the votes and fire its counsel for malpractice: if this case goes to the Supreme Court, it will find five justices who will not hesitate in ending affirmative action once and for all. And they will almost certainly use Chief Justice Roberts’s concurrence in Citizens United to justify reversing Grutter within a decade of the decision.

Kennedy voted against his previous voting record and upheld abortion in Casey because O’Connor’s investment in the law and Souter’s fealty to stare decisis convinced Kennedy that Roe should not be entirely felled. With neither O’Connor nor Souter remaining on the bench, I see no way affirmative action will survive Kennedy’s longstanding antipathy to race-conscious laws. In fact, we may sooner see the justices rule that secession passes constitutional muster. And even Scalia, with his famously alienating pen, could write an opinion that holds a nine-member majority on its unconstitutionality.